RECONSIDERATION DECISION
Before: Terry Hunter, Vice Chair
File: 17-004389/AABS
Case Name: C.L. v. Aviva General Insurance
Written Submissions by:
For the Applicant: Davide V. Cortinovis, Counsel
For the Respondent: Jason R. Frost, Counsel
OVERVIEW
1On May 25, 2018, the Licence Appeal Tribunal (the Tribunal) issued its decision in this matter originating under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The issue decided by the Tribunal was whether the applicant is entitled to a weekly income replacement benefit ("IRB") from November 15, 2015 to date and ongoing. The Tribunal rejected the applicant's argument that his physical impairments prevented him from working. However, it found that, as a result of his psychological injuries, the applicant met the test for past and ongoing entitlement to IRBs.
2On June 15, 2018, the respondent asked the Tribunal to reconsider its decision. The respondent argues the Tribunal erred in a number of respects, described below.
3The applicant opposes the respondent's request for reconsideration, and requests that the Tribunal's decision be upheld.
4Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.
RESULT
5The respondent's request for reconsideration is denied.
FACTS
6The applicant was injured in a motor vehicle accident on August 10, 2015. Prior to the accident, he was employed as a real estate agent. At the time of the accident, he was 62 years-old and had three children under the age of 14. The applicant experienced marital strife before the accident. Eventually, his marriage collapsed and he became the sole caregiver for his three young children.
7After the accident, he claimed and was paid IRBs at the rate of $400.00 per week. However, on November 15, 2016, four months after the accident, the respondent terminated the applicant's IRBs on the basis that he did not satisfy the test required by ss. 5(1)1.i of the Schedule, namely that he had not suffered a substantial inability to perform the essential tasks of his pre-accident employment as a real estate agent. This is otherwise known as the pre-104 week test for IRBs.
8The applicant was involved in a second motor vehicle accident on January 4, 2017. This accident is relevant because the medical reports produced in relation to that accident address the applicant's ability to work in any occupation that he was reasonably suited for as a result of his education, training and experience. In doing so, this evidence is related to the post-104 week test for IRBs.
9After submitting an application to the Tribunal, the parties participated in a case conference. They were unable to resolve the issue in dispute and the matter proceeded to a written hearing.
ANALYSIS
10The grounds upon which a request for reconsideration can be granted are contained in Rule 18 of the Tribunal's Common Rules of Practice and Procedure. The ground that the respondent argues applies to this case is as follows:
The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.
11Specifically, the respondent argues that the Tribunal's decision should be reconsidered because it;
i) did not set out the correct legal test for IRBs;
ii) failed to properly apply the correct test to the facts; and
iii) grossly misinterpreted the evidence.
12I am not persuaded by the arguments advanced by the respondent. Contrary to the respondent's submissions, I find that the Tribunal provided careful and detailed reasons for its decision, and find no basis on which to interfere with it. Based on my review of the evidence, the Tribunal correctly found that the applicant had proven on a balance of probabilities that he was substantially unable to perform the essential tasks of his pre-accident employment as a real estate agent. I also agree with the Tribunal's finding that the applicant met the post-104 week test for IRBs. As the first-level trier of fact, the Tribunal had the responsibility to weigh the evidence before it and, on that basis, render a decision. I find that the Tribunal discharged its duty without any significant error.
The Tribunal Applied the Correct Test for IRBs
13I have no doubt that the Tribunal correctly applied the legal test for pre-and post-104 week IRBs in this case.
14At the outset of its decision, the Tribunal correctly references the sections of the Schedule which outline the test for entitlement for IRBs. The Tribunal notes in paragraph 10 of its decision that this test changes over time. It also quotes both s. 5 and s. 6 of the Schedule which define the scope and level of inability the applicant must suffer in order to meet the eligibility test for pre- and post-104 week IRBs. The Tribunal refers back to the applicable test for IRBs in the Schedule at numerous points throughout its decision.
15In paragraphs 36 to 39 of its decision, the Tribunal deals specifically with the post-104 week test for IRBs. It cites two decisions, Burgess v. Pembridge (FSCO All-001160, June 14, 2013) and VHT v. Certas Home and Auto Insurance Company, 2017 CanLII 69444 (ON LAT), which it found instructive in terms of applying the broader test for IRBs as defined in s. 6(2)(b) of the Schedule.
16Based on the Tribunal's correct and multiple references to the Schedule and its application of relevant jurisprudence, I have no doubt that the Tribunal applied the correct test for IRBs in this case.
The Tribunal Correctly Applied the Legal Test to the Facts
17I also find that the Tribunal applied the correct legal test to the facts before it. The approach that the Tribunal took in this case was a practical and straightforward one based on common-sense.
18The respondent argues that the Tribunal misapplied the facts in this case and, as a result, incorrectly found that the applicant was entitled to pre- or post-104 week IRBs. The errors which the respondent alleges the Tribunal made in this regard can be broken down as follows:
i) The Tribunal did not identify the applicant's pre-accident employment duties;
ii) There was evidence before the Tribunal to suggest that the applicant's employment continued after the accident;
iii) Failure to identify post-accident occupations for which the applicant was suited;
iv) The Tribunal erred in giving weight to submissions not supported by evidence.
19I find no merit in the respondent's arguments. The approach which the respondent argues that the Tribunal should have taken is very prescribed and formalistic. I do not find that such an approach was necessary based on the facts and medical evidence in this case. For instance, the fact that the Tribunal did not provide an extensive examination of the essential tasks performed by a real estate agent is not, in my opinion, a significant error. I have no doubt that the Tribunal was aware of what the essential tasks of a real estate agent and was not required to devote a significant amount of time to documenting this in its decision. My finding is supported by the fact that the Tribunal, in paragraph 20 of its decision, noted that Dr. Cook, psychologist, found the applicant exhibited an inability to perform the specific components of any sales job including dealing with the public, remembering details and problems with concentration and motivation. The evidence that the applicant's employment continued after the accident is speculative. There is evidence he received funds but not whether they were attributable to active employment after the accident.
20The respondent places substantial reliance on a notation by Dr. Leanne Wagner, an assessing doctor. Dr. Wagner, the respondent states, found the applicant was functioning normally after his January 2017 accident. Dr. Wagner actually stated the applicant was functioning well. Well was not defined. I place little reliance on this report.
21Moreover, the totality of the evidence in this case clearly supports the Tribunal's finding that the applicant is completely unemployable and therefore meets both the pre- and post-104 week test for IRBs. There was ample evidence before the Tribunal upon which this decision could be based. Three of the four psychologists who assessed the applicant found that he exhibited symptoms including confusion, disorganization, and memory and concentration problems which were in the severe range. The Tribunal also found it significant that Dr. Cook found in his report that, as result of the severity of his symptoms, the applicant does not want to talk with anyone. All of these symptoms go to the core of a real estate agent's duties.
22The Tribunal found that, although the medical evidence submitted by the applicant does not speak specifically to the post-104 week test (i.e., complete inability), this does not prevent it from finding that the applicant is entitled to benefits beyond the post-104 week period. In paragraph 38 of its decision, the Tribunal states that the applicant argued that the differences between the pre- and post-104 week tests in this case are effectively moot. Based on the applicant's age, restrictive nature of his employment outside of sales and the extent of his psychological impairments the Tribunal agreed.
23Due to these particular facts, the Tribunal found that the applicant could not, in a real world setting, obtain any type of remunerative employment. The Tribunal also astutely considered whether, based on his psychological injuries, the applicant had the adaptive ability to obtain any alternative type of employment. Based on the finding of Dr. Gabidulan, the Tribunal found that the motor vehicle accident significantly affected the applicant's adaptation ability which would completely impair his capacity for other employment.
24I agree with the Tribunal's reasoning and the decision it rendered. Based on the Tribunal's analysis of the evidence, I find no reason to interfere. Even if the Tribunal did make any errors, they would not, if corrected, have resulted in a different decision. The Tribunal's decision to grant the applicant's entitlement to pre- and post-104 week IRBs is within the reasonable range of outcomes based on the evidence and should not be overturned.
The Tribunal did not Grossly Misinterpreted the Evidence
25I find that the Tribunal was cognizant of the challenges of the evidence in this case and dealt with it directly and at length in its decision. The respondent argues that the Tribunal grossly misinterpreted the evidence because it gave weight to psychological opinions which were unreliable. The respondent argues that the Tribunal should not have given weight to these reports because the applicant failed to disclose pertinent information related to his marital and financial problems to the psychologists who assessed him. The respondent, accurately, states that the applicant did not disclose his marital difficulties or eventual marriage breakdown to Dr. Miller, Dr. Cook or Dr. Syed. The respondent argues that, had the applicant disclosed this information, it is unlikely that the assessors would have concluded that the applicant's psychological problems and inability to work were related to problems in his personal life and not as a result of the accident.
26The Tribunal was well aware of the respondent's position regarding the applicant's non-disclosure and responds to it in paragraphs 26 through 35 of its decision. The Tribunal found that there was no evidence to persuade it that the causative impact of the applicant's marital issues were so significant as to rule out the accident as a cause of impairment. Given the psychological impacts from the accident and the personal characteristics of the applicant including his age the Tribunal granted the application for pre-and post-IRBs. Although the respondent may not agree with the Tribunal's reasoning or finding, this is not grounds upon which I can grant a request for reconsideration.
CONCLUSION
27The reasons of the Tribunal are well within the range of acceptable outcomes based on the totality of the evidence. I therefore deny the respondent's request for reconsideration.
Terry Hunter Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 3, 2019